REG 41441

February 26, 1991

Nantucket, ss.



This contest is an unusual one which pits Sally W. Nash and Georgia S. Young, as alleged owners by adverse possession, the plaintiffs, against Sharon Ann Voller of Providence, Rhode Island, the defendant, who claims to be the record owner of a parcel of land in Nantucket at Miacomet. The property in question contains about 12,172 square feet and is shown on a plan entitled "Plan of Land in Nantucket, MA" dated August 27, 1980 by John J. Shugrue, Inc. (Exhibit No. 3).

A trial was held at the Land Court on October 18 and November 20, 1990 at which a stenographer was appointed to record and transcribe the testimony. Witnesses for the plaintiffs were Sally Willaeur Nash, Georgia Schenck Young, Hamilton Baird, Jr., Meredith Folger Troy and Patrick Hancock Woodley, a rebuttal witness. Only the defendant, Sharon Ann Voller, and her financial adviser, John DiSandro, testified for the defendant. A total of twenty-seven exhibits, some with multiple parts, were introduced into evidence and are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The grandparents of Sally Willaeur Nash were Sarah Russell Fitch and Benjamin Franklin Winslow Russell; and her mother is Louise Willaeur, whose first marriage was to Whiting Willaeur, the plaintiff's father. After Mr. Willaeur's death in 1962, Mrs. Willaeur married again and is now Louise Jackson.

2. Mrs. Nash's grandparents and Mrs. Sehenck, the grandmother of Georgia S. Young, were close family friends although not related. Mr. Schenck died a resident of Grosse Point Farms, Michigan, and his wife survived him. Apparently any interest in the locus which he may have had passed to Harriett E. Schenck and from her to Elaine P. Schenck. There are probate proceedings for her in Nantucket, 84P-0017. Both George E. Schenck and Elaine P. Schenck were survived by their three daughters, Elaine S. Hawes, Sandra S. Kent and Georgia S. Young. (Abstract, Exhibit No. 2, Sheets 10, 11, 12.)

3. Louise R. Jackson conveyed her undivided one-half interest in the locus to Sally W. Nash by deed dated October 18, 1983 and recorded with Nantucket County Registry of Deeds, Book 206, Page 123 to which all recording references herein refer (Exhibit No. 9). Mrs. Young's two sisters conveyed their respective undivided oneĀ­third interests to her, Sandra Kent by deed dated September 9, 1983 and duly recorded in Book 206, Page 124 (Exhibit No. 12) and Elaine S. Hawes by deed dated September 15, 1983 and duly recorded in Book 206, Page 125 (Exhibit No. 13).

4. Mrs. Russell and Mr. Schenck and their families enjoyed their summer camp on Nantucket for as long as Mrs. Nash could remember. The Russells had another home at Brant Point in Nantucket and the Schencks as well had a "mainland" Nantucket residence. The building now on the locus was a so-called shack which was enjoyed by the grandparents and parents of the present plaintiffs for picnicking, summer parties, swimming, beach games and related activities. Friends were invited to their famous parties, and in the summer months of July and August the Russells, Schencks and their descendants frequently used the property for seaside recreation. There is and was a structure on the premises (that is, now on the locus and earlier closer to the sea) which shows in many of the exhibits introduced in the case. The building is about 30 to 35 feet long and about 15 feet wide with a porch running the full length of it on the south side toward the ocean. The interior consists of a living room, a kitchen, a dressing room and on the outside is an entry to another small dressing room called Dr. Peabody's office. There is neither a toilet nor running water in the structure although there is a pump in the kitchen which did not work at the time of the trial. There was at one time an outhouse, but it appears to have been the victim of vandalism. There is and has been furniture in the house which over the years has consisted of a built-in seating area, chairs and a bed.

5. Mrs. Nash testified that before she had learned to swim, she nearly drowned at Miacomet, and that was probably her earliest memory of the nearby pond and the shack. She placed it as being at a time when she was approximately four years old, in 1938.

6. The so-called shack by which the Russell/Schenck interests know the building was not originally situated on its present location but was over the bluff nearer the ocean, that is, south of Lots 520 to 525 inclusive. About 1955 or 1956 (fixed by the polio, suffered by Mrs. Nash in 1957), the cabin was moved at the instructions of Mrs. Jackson from its previous location to its present site; movies were taken of the operation. The work was done by Elmore Taylor and was necessary because the beach had eroded up to the bank just below the shack, so in the words of Mr. Taylor's affidavit "it was a question of move it or lose it".

7. The plaintiffs and their families had fought a continuous battle against the ocean and vandalism. They have planted beach grass, have put in snow fences to build up the drive and posts to stop automobile traffic. The plaintiffs also have put in posts to block motor vehicles from crossing the sand and increase the erosion.

8. Mrs. Nash would use the locus all summer from approximately June 30 to Labor Day (or in some years from June 15 to September 15), although it was a rare occasion when either of the plaintiffs or their families would spend the night at the shack. It was daytime picnicking and evening parties but not twenty-four hour living. This changed, however, in more recent years when Mrs. Nash engaged Nantucket residents to live in the shack. During the winter the cottage was boarded up. From time to time repairs were necessary as shingles were torn off by trespassers or by the elements and a toll was taken of the building.

9. Mrs. Nash who handled the business transactions connected with property, paid the taxes, placed the insurance, paid any bills to the payment of which Mrs. Young contributed equally, and arranged to have caretakers stay at the premises. Sometime in the 1970's Mrs. Nash engaged Brendan Murphy to be a caretaker of the premises, and he would live in the cottage during the summer months every year. He was a young man working in Nantucket who lived in the shack in return for board and looked after repairs and guarded it from vandalism. The task was taken over in the early '80's by Patrick Woodley, whose brother and two friends followed his tenure in the latter years of the last decade.

10. Eventually the Board of Health required that the premises be vacated because of the dearth of the unusual sanitary facilities, and no one has lived at the premises in very recent years.

11. The record title to the property as set forth in the Abstract of Title (Exhibit No. 2) commences with a deed out from one John Hathaway to Francis D. Kelley dated November 8, 1901 and duly recorded in Book 84, Page 191. The deed conveyed Lots 520 to 525 inclusive in Section C on a plan by Frank M. Metcalf duly recorded with Nantucket Deeds and containing 11,850 square feet. Mr. Kelley dropped out of sight, and there were no transactions affecting the record title to the above numbered lots from 1902 when the Hathaway deed was recorded until there was a taking by the collector of taxes for the Town of Nantucket for fiscal 1981 and 1982 which instrument was dated March 11, 1983 and recorded in Book 198, Page 317. Subsequently Doris A. Keith, the daughter of a Francis D. Kelley, conveyed the premises to the defendant by deed dated June 18, 1983 and duly recorded in Book 202, Page 156.

12. The tax title was redeemed by Arthur I. Reade, Jr. as attorney for the plaintiffs by instrument dated December 30, 1983 and duly recorded in Book 212, Page 21.

13. After Francis D. Kelley acquired title, he apparently had no further contact with the land conveyed to him by Mr. Hathaway. In 1973 Mr. DiSandro, a business associate of the defendant, was in Nantucket for fishing and saw the shack now claimed by the plaintiffs. Its unclear how this led him to an investigation of the title, but he testified that he checked the records in the Nantucket Registry of Deeds and found in the receiving book an address to which the 1902 deed to Mr. Kelley was to be sent. That address was 38 Central Street or Avenue in Providence. An investigation made first by another examiner of records and later by Mr. DiSandro found in the city directory in Providence only one Francis D. Kelley whose address changed in 1903 with a note that he had moved to Middleboro. Subsequently a Francis D. Kelley died on December 30, 1921, a resident of Middleboro in the County of Plymouth, Plymouth Probate No. 30252. The petition for administration gave as his only heirs at law and next of kin, his widow, Edith F. Kelley and his daughter Doris A. Kelley. The petition was allowed on February 13, 1922. Thereafter Edith F. Kelley died a resident of Middleboro, but there was no probate of her estate (see Exhibit Nos. lA and 1D).

14. There was no documentary evidence introduced at the trial as to the address given in the receiving book at the Registry of Deeds or of the addresses listed in the city directory in Providence so that the identity and whereabouts of Mr. Kelley rested only on the testimony of Mr. DiSandro to which there was no objection. As noted above the witness did not make the original investigation, but he subsequently rechecked the records prior to the date of the trial and confirmed what he had been told.

15. Upon payment of $100 (although the deed recites a consideration of only $1.00) one Doris A. Keith, reciting that she was the sole heir at law of her father, Francis D. Kelley, conveyed the five lots shown on the Metcalf plan to the defendant. Mrs. Keith did not testify at the trial.

16. Mr. DiSandro claimed that he had slept in the shack in a sleeping bag early in the '70's, and that he had revisited the locus in the late '70's and '80's. On one occasion he claimed to have found a derelict asleep in the shack.

17. Matters reached the boiling point when Mr. DiSandro confronted a group of young people at the property enjoying a day at the beach. One of these individuals was Patrick Hancock Woodley a witness at the trial who had been engaged by Mrs. Nash to safeguard the property. The Providence visitor claimed to represent the owner of the property and voiced threats of the state police and arrest. Counsel for the plaintiffs defused the situation, and this registration petition was filed shortly thereafter.

18. The Nantucket Assessors have assessed Mrs. Nash's grandfather, Benjamin F. W. Russell, for land at Miacomet beginning at least as early as 1956 and continued the assessment through 1979 (Exhibit No. 17). Thereafter and commencing in 1980 the assessors assessed Francis D. Kelley for Lots 520 to 525 in Section C at Miacomet Park, and this assessment continued until fiscal 1985 when the assessed owner was given as Sharon Voller. In 1983 there was a taking made for the nonpayment of 1981 and 1982 real estate taxes which was recorded in Book 198, Page 317, and these were paid by counsel for the plaintiffs and an instrument of redemption recorded in Book 212, Page 21 (Abstract, Exhibit No. 2, p. 8). All the taxes for the earlier years similarly were paid by the plaintiffs although the tax bills referred only to Miacomet Park and not to the specific lots. The earliest evidence of assessments to Mr. Kelley before the Court was 1980, although the Court does not have before it records for the period from 1901 to 1956 and makes no finding as to them.

This case is very similar to many heard by the Court in recent years where a long dormant record title is acquired by strangers to the transaction in search of the legendary pot of gold at the end of the rainbow. Some of these fishers in troubled waters are domiciled in our neighboring state of Rhode Island as is the defendant, and others are residents of the Commonwealth. However, the present action is unusual in that the plaintiffs in the registration proceeding have no record title to the property in question, but they vest their right to registration on title by adverse possession, whereas the defendant claims to own the locus of record.

I find and rule that the plaintiffs have established twenty years of open, uninterrupted, notorious; exclusive possession of the premises adverse to the world under a claim of rignt. It is clear that the extent of proof necessary to establish adverse possession is governed by the type of property involved. LaChance v. First National Bank & Trust Co., 301 Mass. 488 , 490 (1938). The nature of the use of the shack was seasonal, although it was checked in the winter by friends of the plaintiffs, and it was attacked by vandals during some months of the off season (and even in-season). There was no occupation, however, sufficient to destroy the plaintiffs exclusivity of possession. Vandals would not interrupt the running of the period. As to the witness' testimony that he slept there in the early '70's I discount it. Even if so, it was not legally sufficient to stop the statute running. The case of the acrobats, Kershaw v. Zecchini, 342 Mass. 318 (1961), vividly portrays the possibility of acquiring title by adverse possession during a use limited to one part of the year only, and I so found and ruled early in my judicial career in another case also involving Nantucket. Nantucket Conservation Foundation, Inc. v. Gilbertson, Miscellaneous Case No. 60981. It is true that the premises were not completely fenced in as some cases have suggested may be a necessary element of adverse possession, at least where it is claimed under color of right, but the construction of a building upon the land claimed by the adverse possessor and occupied exclusively by him or those claiming under him seems to be an even stronger indication of adverse possession. In addition, snow fences, posts and plantings all are evidence of the plaintiffs' claim (and that of their predecessors on whose possession they tack). If any member of the Kelley family had ventured to Nantucket and had traversed the customary route to Miacomet Pond, he could not help but been aware of the occupation by the plaintiffs. This certainly was open and notorious. It was the responsibility of the record owner to visit his land from time to time to stop the running of the twenty year period, and so far as the record shows, he, his wife or daughter never did so.

The evidence certainly is not conclusive as to whether the Francis D. Kelley in question is the same Francis D. Kelley who was a grantee named in the deed from John Hathaway. The defendant did not call Kelley's daughter who well might have been able to shed light on the family's ancestry. However, for purposes of this decision, I am assuming that the defendant acquired record title by the deed from Doris Keith, albeit subject to the infirmity of a missing probate. However, by the time that the deed to the defendant was executed and delivered, the plaintiffs and their predecessors already had acquired title to the property by adverse possession. I date the running of the twenty years from 1953 or 1954. I am not unmindful that the representative of the defendant claims to have trespassed on the shack and to have slept in it in a sleeping bag. I have discounted this testimony, but even if it were true, I find and rule that this did not defeat the plaintiffs' claim to have had exclusive possession of the premises.

On all the evidence therefore I find and rule that the plaintiffs have acquired title by adverse possession to the premises shown on the filed plan and that title thereto may be registered in them subject to such matters as are shown by the abstract and are not in issue here.

Judgment accordingly.